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Findings and recommendations on merit review 010/18

Findings on review

The following are findings made by the State Insurance Regulatory Authority (“the Authority”) on review and are to be the basis for the Insurer’s review decision.

From December 2016 to May 2017 the worker had capacity to work 4 hours per day, 3 days per week within the capabilities outlined in the treating doctor’s certificates.

From May 2017 to July 2017 the worker did not have capacity for work for any employment.

From July 2017 to date the worker has had capacity to work 4 hours per day, 1 day per week within the capabilities outlined in the treating doctor’s certificates.

Recommendations based on findings

The following recommendations made by the Authority are binding on the Insurer and must be given effect to by the Insurer in accordance with section 44BB(3)(g) of the 1987 Act.

The worker is entitled to weekly payments of compensation under section 37 of the 1987 Act from December 2016 to date.

The Insurer is to calculate the weekly entitlements using the appropriate formula under section 37 in accordance with my findings above as to the worker’s capacity for work in the different periods.

Background

The worker sustained an injury to their lower back in the course of their employment as a traffic controller with their pre-injury employer.

The Insurer accepted liability for the injury and the worker has been in receipt of weekly payments of compensation.

The worker commenced working with a new employer in November 2016 as a courier on a casual basis and as part of a return to work plan.

In December 2016, the Insurer made a number of work capacity decisions resulting in the cessation of the worker’s entitlement to weekly payments of compensation under section 38(3) of the 1987 Act. The Insurer found that:

The worker had the capacity to work 12 hours per week

They were able to return to work in suitable employment in a number of roles

They had the ability to earn $XX per week

The amount of their pre-injury average weekly earnings (“PIAWE”) was $XX

They did not meet the special requirements under section 38(3) of the 1987 Act for ongoing entitlement to weekly payments of compensation.

The worker made an application for internal review. The Insurer undertook an internal review in April 2017 and maintained its decision. In XX April 2017, the worker made an application for merit review by the Authority. The worker subsequently withdrew this application.

The worker’s employment as a courier was terminated in May 2018. They submitted that they were unable to continue working. On XX May 2017, their treating doctor issued a WorkCover NSW certificate of capacity, certifying the worker as having no current work capacity for any employment.

The worker submitted an application for internal review of the work capacity decision dated December 2016 with the Insurer. The application is dated June 2017 and attached a copy of the certificate of capacity dated May 2017. It was submitted via email correspondence of June 2017, a copy of which has been provided to the Authority. The Insurer did not respond to the application and have advised the Authority that they “are unable to find this application on our files”.

In August 2017, the worker’s legal representatives wrote to the Insurer again referring to the work capacity decision of December 2016 and requesting a “reconsideration” of the decision on the basis that the worker May 2017.

The Insurer has failed to respond to the worker’s application for internal review and above request for reconsideration of the work capacity decision.

The worker made an application for merit review by the Authority in October 2017. The application has been accepted by the Authority pursuant to section 44BB(3)(b) of the 1987 Act. The application has been lodged in the form approved by the Authority.

Legislation

The legislative framework governing work capacity decisions and reviews is contained in the:

Section 44BB of the 1987 Act provides for merit review of a work capacity decision of the Insurer, by the Authority.

Documents considered

The documents I have considered in this review are those listed in, and attached to, the application for merit review, the Insurer’s reply and any further information provided by the parties.

I am satisfied that both parties have had the opportunity to respond to the other party’s submissions and that the information provided has been exchanged between the parties.

Submissions

The worker’s legal representative makes the following submissions on the worker’s behalf in the application for merit review:

We have not received a response to our request dated August 2017.

Reference is made to WorkCover NSW certificate of capacity dated May 2017.

In its reply to the application for merit review, the Insurer provides excerpts of its work capacity decision dated December 2016 and the internal review decision dated April 2017 and submits:

The issues raised in the worker’s application for merit review have been noted. The Insurer maintains that the work capacity decision that has been made is supported by medical and rehabilitation information that has been obtained to undertake a work capacity assessment.

The Insurer also notes that the worker was notified of the internal review decision in April 2017. The request for a merit review is outside the guidelines as stated in the legislation.

Nature of merit review

This matter involves a merit review of the work capacity decision of the Insurer in accordance with section 44BB(1)(b) of the 1987 Act.

The review is not a review of the Insurer’s procedures in making the work capacity decision and/or internal review decision. The review requires that I consider all of the information before me substantively on its merits and make findings and recommendations that, in light of the information before me, are most correct and preferable.

The Authority is only able to review the work capacity decisions of an Insurer that are referred for review by a worker in accordance with section 44BB.

Section 43(1) of the 1987 Act describes the various types of work capacity decisions that can be made by an Insurer.

The worker requests in their application for merit review and the Authority confirmed in an email dated December 2017 that they seek that the Authority review the following work capacity decisions of the Insurer:

Decision about their current work capacity

Any other decision that affects their entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to them on the basis of any of the above decisions.

Accordingly, the Insurer’s decisions in relation to suitable employment for the worker, their ability to earn in suitable employment and the amount of their PIAWE stands and I will proceed to only review the above two decisions.

Reasons

Capacity for work

The worker sustained an injury to their lower back while working as a traffic controller with their pre-injury employer.

It is not clear when the worker’s employment with their pre-injury employer ceased. In early November 2016, they commenced working as a courier with an employer on a casual basis and as part of a return to work plan. This employment ceased in May 2017.

There is not a large amount of medical information before me. The Insurer confirms in an email dated December 2017 that it does not hold any further medical information.

There is a referral from the worker’s treating doctor before me dated June 2016. It is for ‘psychology pain management’. The treating doctor refers the worker for pain management following a laminectomy and notes that this was their second surgery in a two month period. They also note the worker’s pain is exacerbated with driving long distances.

A specialist reviewed the worker and prepared a report dated April 2017. The specialist reports that the worker sustained a large disc protrusion in their lower back. In February 2015 they had a laminectomy and microdiscectomy in their lower back which reversed the symptoms. However, in 2016 they re-injured their back and suffered another disc protrusion in their lower back. In March 2016 the worker had another microdiscectomy which reversed their symptoms.

The specialist reports that the worker continues to complain of right-sided lower back pain which is associated with right foot and ankle numbness. The specialist also notes that due to their “persistent pain condition”, they had developed sleep disturbance.

The specialist notes that the worker was working 4 hours per day, 2 days per week at that time. They attended exercise physiology treatment and regular hydrotherapy. They had also started seeing a clinical psychologist once every fortnight.

In their report, the specialist also refers to the results of testing that had been undertaken. Psychometric screening had reportedly shown moderate anxiety, mild depression, low self-efficacy and significant catastrophising. The worker’s orebro musculoskeletal pain questionnaire (OMPQ) score was reportedly “high”. An MRI of their lumbar spine reportedly showed “…resolution of their lower back disc protrusion” and “no significant central canal stenosis or foraminal stenosis seen”.

The next medical report before me is a patient health summary print-out dated in May 2017. It lists six different types of medications as the worker’s “current medication”. The details of the medication are not legible due to the form of the document.

In their application for internal review dated June 2017, the worker advised:

Due to my ongoing pain and inability to cope with my duties, my GP further downgraded my capacity to work and provided a WorkCover certificate of capacity certifying me as unfit for work from May 2017. My employment with the employer was terminated in May 2017, as I am unable to work in any capacity. I have been consulting with a psychologist, for approximately one year to treat my secondary psychological injury. My psychological injury has also affected my ability to work. The psychological treatment expenses have been covered through insurance. I am currently undergoing treatment by way of nerve blocks, with the possibility of fusion surgery.

An Operation Report prepared by the specialist provides details in relation to a right lower back medial branch radiofrequency neurotomy and right lower back transforaminal block they performed in June 2017. The specialist reports the indication for surgery as “right-sided lower back pain”.

The final report before me is from a physiotherapist, dated September 2017. They note that the worker had been undergoing exercise physiology until a few weeks ago. The worker had reported that the procedure undertaken in June had improved their condition however it was “now worsening again”.

The physiotherapist reports that the worker was taking medication for the pain and a number of other medication to assist with depression and anxiety and that they were under the care of a psychologist. The physiotherapist concludes that they will be applying to the Insurer for ongoing physiotherapy and hydrotherapy.

The WorkCover NSW certificates of capacity before me date back to April 2016 and are issued by the treating doctor. The worker was certified as having no capacity for work until July 2016.

They were then certified as having capacity to work 4 hours per day, 3 days per week, for a period until April 2017.

The next certificate is dated May 2017 and certifies the worker as having no capacity for any employment. It includes a comment: “Awaiting specialist approval for right lower back medial branch block”.

On July 2017 the worker’s certification changed to capacity to work 4 hours per day, 1 day per week, until October 2017. These are the most recent certificates before me. They certify the following capabilities for the worker:

Lifting/carrying capacity: Up to 5kg

Sitting tolerance: 20 minutes

Standing tolerance: 20 minutes

Bending/twisting/squatting ability: No repetitive

Driving ability: 30 minutes

With the exception of the treating doctor’s certificates, the remainder of the above medical information do not include an opinion as to the hours of work that the worker has the capacity to work. The information does however generally support the treating doctor’s certification in terms of the treatment that the worker has required and the need for the procedure undertaken in June 2017 shortly after the downgrade in the certificate of capacity dated May 2017.

Accordingly, on the basis of the medical information before me I am satisfied the worker’s capacity for work, since the work capacity decision of December 2016, has been in accordance with the certificates of capacity issued by the treating doctor.

I find:

From December 2016 to May 2017 the worker had capacity to work 4 hours per day, 3 days per week within the capabilities outlined in the treating doctor certificates

From May 2017 to July 2017 the worker did not have capacity for work for any employment

From July 2017 to date the worker has had capacity to work 4 hours per day, 1 day per week within the capabilities outlined in the treating doctor’s certificates.

Entitlement to weekly payments of compensation

The following provisions of the 1987 Act provide the basis for determination and calculation of a worker’s weekly payments entitlement:

Weekly payments in the first 13 weeks are to be determined in accordance with section 36 of the 1987 Act (“the first entitlement period”)

Weekly payments in weeks 14–130 are to be determined in accordance with section 37 of the 1987 Act (“the second entitlement period”); and

Weekly payments after the second entitlement period (after week 130) are to be determined in accordance with subsections 38(6) or (7), but only if the special requirements for continuation of weekly payments after the second entitlement period are met in accordance with section 38 of the 1987 Act.

The Insurer’s reply submitted October 2017 states that the worker had been in receipt of 120 weeks of weekly payments of compensation. The worker’s entitlement to weekly payments of compensation therefore falls in the second entitlement period and is to be calculated under section 37 of the 1987 Act.

The Insurer’s application of section 38(3) of the 1987 Act and the special requirements under this section, when the worker had not yet reached this entitlement period, was incorrect.

I find that the worker is entitled to weekly payments of compensation under section 37 of the 1987 Act from December 2016 to date.

Section 37 of the 1987 Act provides:

The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:

(AWE × 80%) − D, or

MAX − D,

whichever is the lesser.

The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:

(AWE × 95%) − (E + D), or

MAX − (E + D),

whichever is the lesser.

The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:

(AWE × 80%) − (E + D), or

MAX − (E + D),

whichever is the lesser.

The Insurer is to calculate the weekly entitlements using the appropriate formula under section 37 in accordance with my findings above regarding the worker’s capacity for work in the different periods set out in paragraph 50.

Merit reviewerMerit Review ServiceDelegate of the State insurance regulatory authority